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Plausibility and Common Sense DANGER

One of the must consequential decisions of the Supreme Court's last term didn't look so consequential at first, but it has since.

In the case of Ashcroft v. Iqbal, an Arab-American sued the Bush Administration for abuse borne of racial profiling after the 9/11 attacks.

Of course, the anti-Arab hysteria rampant at the time affected many people, even some judges; the courts seemed willing to forgive racial profiling and even more obvious bigotry for the cause of security.  I have my own issues with such an obnoxious view on the part of our courts, and how dangerous such a view is to the American ideal of liberty and presumption of innocence.  I choose not to live in a country where racial profiling is the norm, and where civil liberties no longer exist, or no longer exist for certain minorities, in the name of "security."  I would rather be less secure and more free.

But that's not my only problem with the case.  My problem with the case is that it has a far more insidious and sinister potential impact on all litigation from the plaintiff's perspective in federal courts throughout the entire United States.  In fact, if I and others concerned over this case are right, this new sinister philosophy might even affect state court litigation, as well.

The Supreme Court must always act with restraint and care when it makes new law, because that law has a ripple effect throughout the entire court system.  As one of my favorite comic book characters, Spider Man, used to say, "with great power comes great responsibility.

Yet on its face, the Iqbal decision merely found that Mr. Iqbal's case could not proceed forward; yet something deeper and sinister happened.

In the 5-4 decision, the dissent was very troubled by the fact that a judge subjectively decided that he didn't like the case and therefore decided to get rid of it.  The majority, of course, led by ideologues who have no respect for the Constitution or for civil liberties because their corporate masters don't have that respect, sided with the Bush Administration and held that federal judges can now be "gatekeepers," deciding when a case lacks "plausibility and/or common sense," in which case they are allowed to dismiss it.

Note those entirely relative and entirely dangerous and subjective words: "plausible" and "common sense".

What in the world do those words mean to you?  I bet they mean something different than they do to the next person.  In fact, they mean something different to everyone.  In further fact, the words can have no meaning unless those meanings are relative, individual and uniquely borne of each person's experience.

The words are ridiculous and impossible.  Yet now the Supreme Court has now given Federal judges a new power that they have never had and that the Constitution never contemplated they have: the power to decide when cases are not "plausible" or when they don't make subjective "common sense" and then to dismiss them.

The old standing Supreme Court precedent was that a case merely needed to set forth some facts and a claim theory in order to survive initial review.  It was then up to the discovery process to ferret out the actual proofs.  Sometimes, when only in the complaint stage of the case, plaintiffs don't always have the proof that they need; the defense often controls that proof.  Under the old standard, the defendant was in theory required to turn over that proof if it existed and thus the truth would become known.

During discovery.

In this new post-Iqbal world, a lawsuit must now satisfy a potentially very skeptical and biased judicial gatekeeper before the plaintiff ever has a chance to see or seek the truth.

Law professors don't like it, civil libertarians don't like it, and pretty much every plaintiffs' lawyer in the country doesn't like it.  Defense lawyers love it, because it gives them yet another tool to use against the cause of justice.  I don't expect better from them.  I expect better from my Supreme Court, but I'm not surprised given the caliber of the President who has just left office and the resulting caliber of the judges with which he stacked the Court.

Mark my words: Iqbal is dangerous.  It's going to result in meritorious cases being dismissed.  It's going to result in abuse.  It needs to be overturned.

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